AUSTIN — Attorney General Ken Paxton’s fate is now firmly in the hands of the Texas Senate.
As the House voted to impeach Paxton because of alleged misconduct on Saturday, Paxton’s allies turned their attention to the senators who will decide in a trial whether he should be ejected from statewide office.
His office delivered a thick stack of documents to senators’ offices that included a defense of Paxton, according to members who received the packets and a copy obtained by The Dallas Morning News.
Among the documents is a personally addressed letter signed by Brent Webster, Paxton’s top deputy who is now leading the agency in his stead.
Webster’s letter was openly critical of the House and said senators are in an “unenviable position.”
“As things stand, I believe that the Texas House’s procrastination and secrecy has hobbled the Senate’s ability to consider these Articles,” Webster wrote in a letter dated Saturday. “I apologize for the voluminous nature of the documents; it is unavoidable because I must get the truth and underlying supporting evidence to you.”
A spokesperson for the attorney general’s office did not respond to questions.
Sen. Roland Gutierrez, D-San Antonio, said such outreach from the attorney general’s office is inappropriate.
“They’ve tried to color the jury in some way for sure,” he said. Paxton “will have plenty of time to offer his defense in that proceeding.”
Several senators said they don’t plan to read the agency’s packet, noting it’s not proper in their role as jurors.
“I’m not going to look at anybody’s until they tell me what I’m allowed to,” Sen. Drew Springer, R-Muenster, said. “I’m not going to try to sit here and do my own exploratory stuff.”
Lt. Gov. Dan Patrick has not publicly come to Paxton’s defense, saying that to comment on the allegations would be akin to asking a judge how a case will turn out before it’s been tried.
But the Senate leader will no doubt loom large over the proceedings as he holds a tight grip on the upper chamber and enjoys strong support from the state’s conservative base.
Patrick’s neutral tone is a contrast to the public impeachment opposition from U.S. Sen. Ted Cruz and former President Donald Trump, with whom Patrick has been closely aligned.
The chamber is riddled with potential conflicts of interest, the most notable of which is the attorney general’s wife, Sen. Angela Paxton. The McKinney Republican has not said whether she will participate in her husband’s impeachment trial.
“All 31 senators will have a vote,” Patrick told WFAA-TV (Channel 8) on Friday. “We will all be responsible as any juror would be… and I think the members will do their duty.”
All eyes on the Senate
The GOP-led House on Saturday voted overwhelmingly to impeach Paxton, alleging that numerous abuses of office made their fellow Republican unfit to serve as the state’s top lawyer. The 20 articles of impeachment allege Paxton accepted bribes, including a kitchen remodel, in exchange for using the power of his office to help a campaign donor entangled in an FBI investigation.
Paxton is suspended from official duties pending an impeachment trial in the Senate. Speaker Dade Phelan said late Sunday that it is his understanding that Paxton will not receive a salary while suspended.
Patrick will preside over the Senate’s proceedings. Two-thirds of the senators are needed to approve Paxton’s removal from office.
The body, which has yet to announce a trial date, will set rules for the proceedings as well.
Many GOP Senators have taken to social media to issue statements saying they cannot discuss the trial in advance. They noted: “Know that we will faithfully follow the constitution and the law, and we will honor our sworn oaths.”
After the impeachment vote on Saturday, Rep. Eddie Morales, D-Eagle Pass, asked whether more articles of impeachment could be added to address Paxton’s alleged intimidation of lawmakers.
A member of the House ethics probe said Paxton had called some representatives before the impeachment vote threatening political consequences. Paxton has not publicly refuted this allegation.
In past impeachments, House lawmakers built in flexibility to add more articles, according to the Legislative Research Library. The articles of impeachment against Paxton also allow for additions “at any future date.”
Fort Worth GOP Rep. Charlie Geren, who served on the House investigating committee that wrote the impeachment articles, told the Fort Worth Report he doesn’t believe any more articles will be tacked on.
“There’s a trial coming up,” he told the news outlet. “A lot of things will come out.”
A question of timing
Once the articles are delivered to the Senate, the chamber can then set a schedule and rules. Patrick has not responded to questions about timing.
The legislative session ends Monday.
But Gov. Greg Abbott will likely call lawmakers into a special session to address issues left undone by the deadline, potentially including public education funding, property tax relief and the power grid.
If lawmakers return soon, the Senate could take up impeachment at the same time, said Brandon Rottinghaus, a University of Houston political science professor.
“My guess is that Patrick will want to get through this as quickly as possible,” he said. Expediting impeachment would be good politically, Rottinghaus added, because the longer Paxton is out of office the more it hurts him “and therefore, the Republican brand.” Patrick also likely wants to refocus on legislating: “I think he’d like to get back to the normal course of business.”
There have only been two impeachments in Texas history and each offers a different guide.
In 1917, the Senate began a trial of Gov. James “Pa” Ferguson a week after receiving the articles from the House. In 1975, the Senate scheduled a trial months after the House voted to impeach Duval County district judge O.P. Carrillo.
Rules of impeachment trials
It’s not clear what type of rules the Senate will adopt.
It could require its members to recuse themselves if they have conflicts of interests or are called to testify. The rules will matter especially for Paxton’s wife, since spouses have different privileges against incriminating statements depending on whether the body adopts criminal trial rules.
Other senators, such as Bryan Hughes, may also get swept up in the proceedings. The Mineola Republican asked Paxton’s office for a legal opinion central to one of the impeachment articles alleging misconduct by the attorney general.
Hughes did not respond to a request for comment but was among the senators who issued a statement saying as a juror, he cannot “discuss the case with anyone.”
Texas government code requires that all senators “shall be in attendance” while the body meets for an impeachment trial. They may be able to choose not to cast a vote, Rottinghaus said.
In past impeachments, the House named a board of managers to handle proceedings, who also served as prosecutors during the Senate trial.
Geren expects Phelan to choose the board but said he did not know who it would comprise.
Rep. David Spiller, a Jacksboro Republican who also serves on the investigation panel, said the committee will continue gathering information, documents and testimony. On Sunday, the House Committee on General Investigating announced their intent to issue subpoenas to several banks and trusts, including Paxton’s own blind trust and the man who oversees it.
Paxton also must put together a defense team.
Ross Garber, a lawyer who has defended five governors and an attorney general against impeachment in other states, said it would not be unusual for Paxton to hire outside counsel in addition to tapping those within his agency.
It’s unclear whether Paxton would use taxpayer money to pay outside lawyers.
Little other precedent for what happens next is available because efforts to impeach usually do not reach the trial phase, Garber noted. Last year, he defended the attorney general of South Dakota when he was impeached after a hit-and-run.
The most recent impeachment trial at the state level before that, he believes, may have been Illinois Gov. Rod Blagojevich in 2009.
“These things are incredibly rare,” Garber said. “So, the answer is, there is really no formula.”
Austin bureau reporter Aarón Torres contributed to this report.
